United States v. Hester
664 F. App'x 73
| 2d Cir. | 2016Background
- Ernest Hester pleaded guilty to RICO conspiracy (18 U.S.C. § 1962(d)) and was sentenced to 135 months’ imprisonment.
- District court applied a 4-level Guidelines enhancement under U.S.S.G. § 2A2.2(b)(2)(B) for aggravated assault with a dangerous weapon based on findings that Hester stabbed a rival, Jimmie Hudson.
- Surveillance video and testimony were disputed: a detective saw a knife, Hester and his expert said the object was a cell phone; video showed Hester holding an object and moving Hudson’s left arm/back where cuts occurred.
- Hester argued the court erred in (1) applying the aggravated-assault enhancement, (2) failing to appropriately consider sentencing disparities with codefendants, and (3) assigning three criminal-history points for a prior NY conviction where he served ~8 months of an 18-month sentence after shock-incarceration release.
- The district court credited its view of the surveillance and witness credibility, applied the enhancement, noted counsel submissions, and counted the state sentence as 18 months for criminal-history scoring.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| 1. Guidelines enhancement for stabbing | US: Court may apply 4‑level §2A2.2(b)(2)(B) on preponderance showing | Hester: Video uncertain; object was a cell phone, not a knife, so enhancement improper | Affirmed — factual findings not clearly erroneous; district court reasonably concluded Hester stabbed Hudson and could credit witness credibility |
| 2. Sentencing disparities with codefendants | US: district court not required to equalize co‑defendant sentences | Hester: His 135 months is much higher than codefendants (57–97 mos); court failed to account for disparity | Affirmed — §3553(a)(6) requires consideration of similar defendants nationwide, not co‑defendants; record shows court considered submissions; no punishment for litigating enhancement |
| 3. Criminal history points for prior NY sentence | US: PSR correctly scored 18‑month sentence, yielding 3 points despite early shock‑release | Hester: Early release/suspension means part of sentence should not count toward criminal history | Affirmed — points based on sentence pronounced, not time served; no record of suspension so scoring proper |
Key Cases Cited
- United States v. Halloran, 821 F.3d 321 (2d Cir. 2016) (preponderance standard and clear‑error review of sentencing facts)
- United States v. Bershchansky, 788 F.3d 102 (2d Cir. 2015) (deference to district court factfinding when two reasonable views exist)
- United States v. Villafuerte, 502 F.3d 204 (2d Cir. 2007) (procedural and substantive reasonableness standard for sentence review)
- United States v. Stevenson, 834 F.3d 80 (2d Cir. 2016) (§3553(a)(6) requires consideration of disparities among similar defendants generally, not co‑defendants)
- United States v. Frias, 521 F.3d 229 (2d Cir. 2008) (district court not required to consider co‑defendant disparities)
- United States v. Conca, 635 F.3d 55 (2d Cir. 2011) (criminal history points are based on the sentence pronounced, not time actually served)